BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 558|
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THIRD READING
Bill No: SB 558
Author: Simitian (D)
Amended: 5/3/11
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 4/26/11
AYES: Evans, Corbett, Leno
NOES: Harman, Blakeslee
SUBJECT : Elder and dependent adults: abuse or neglect:
damages
SOURCE : California Advocates for Nursing Home Reform
California Alliance for Retired Americans
Congress of California Seniors
Consumer Attorneys of California
DIGEST : This bill changes the evidentiary standard of
proof for elder and dependent abuse or neglect cases from
clear and convincing to preponderance of the evidence.
This bill also clarifies that punitive damages may not be
imposed against an employer unless the requirements for
other civil case exemplary damages against employers are
satisfied; this requirement would not apply to the recovery
of compensatory damages or attorney's fees and costs.
ANALYSIS : Existing law, EADACPA, generally provides
civil protections and remedies for victims of elder and
dependent adult abuse and neglect. (Welfare & Institutions
Code Section 15600 et seq.)
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Existing law provides that where physical abuse or neglect
of an elder or dependent adult is proven by clear and
convincing evidence and the defendant has been found guilty
of recklessness, oppression, fraud or malice, in addition
to all other remedies otherwise provided by law, the
plaintiff can recover reasonable attorney's fees and costs,
as specified. In order to receive any damages or
attorney's fees against an employer, the standards set
forth in Civil Code Section 3294(b) must be satisfied.
(Welfare & Institutions Code Section 15657.)
Existing law requires a plaintiff, in order to receive
punitive damages against an employer for the acts of an
employee, to make a showing of clear and convincing
evidence that the employer had advance knowledge of the
unfitness of the employee and employed him or her with a
conscious disregard of the rights or safety of others or
authorized or ratified the wrongful conduct for which the
damages are awarded or was personally guilty of oppression,
fraud, or malice. In the case of a corporate employer, the
advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be
on the part of an officer, director, or managing agent of
the corporation. (Civil Code Section 3294(b).)
This bill changes the standard of proof required in elder
or dependent adult physical abuse and neglect cases brought
under Welfare and Institutions Code Section 15657 from
clear and convincing to a preponderance of the evidence.
This bill requires the standards set forth in Civil Code
Section 3294(b) to be satisfied in order to receive
punitive damages against an employer for an employee's
acts. This bill does not require this showing to receive
compensatory damages or attorney's fees and costs.
This bill specifies that the changes made to this Section
by this bill are not intended to affect the standard of
proof for punitive damages pursuant to Section 3294 of the
Civil Code.
Background
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In 1992, the Legislature enacted the Elder Abuse and
Dependent Adult Civil Protection Act (EADACPA). (SB 679
ÝMello], Chapter 774, Statutes of 1991) EADACPA was
established in order to provide enhanced remedies to ensure
adequate representation of victims in cases of elder or
dependent adult physical and financial abuse and neglect.
In 2005, the Legislature enacted AB 2611 (Simitian),
Chapter 886, Statutes of 2004, which separated out the
provisions for elder and dependent adult financial abuse.
AB 2611 imposed a different standard of proof than the
clear and convincing evidentiary standard necessary to
prove physical abuse or neglect.
In 2002, the U.S. General Accounting Office (GAO) prepared
a report on nursing home resident abuse. This report was
presented to the U.S. Senate Special Committee on Aging.
The GAO found that 30 percent of the 17,000 nursing homes
in the United States were cited for deficiencies involving
actual harm to the nursing home residents or for placing
the residents at risk of death or serious injury. (Nursing
Homes: More Can Be Done to Protect Residents from Abuse,
GAO-02-312, Mar 1, 2002,
http://www.gao.gov/new.items/d02312.pdf as of Apr 2, 2011.)
This report stated that "relatively few prosecutions
result from allegations of physical and sexual abuse of
nursing home residents because allegations of abuse were
not always referred to local law enforcement or MFCUs
ÝMedicaid Fraud Control Units]. When referrals were made
it was often days or weeks after the incident occurred,
compromising the integrity of what limited evidence might
have still been available. Second, a lack of witnesses to
instances of abuse made prosecutions difficult and
convictions unlikely."
This bill changes the evidentiary standard of proof for
elder and dependent adult physical abuse and neglect civil
cases from a clear and convincing standard to preponderance
of the evidence. This bill also clarifies that punitive
damages in these cases may not be awarded against an
employer for an employee's acts unless the requirements
under the Civil Code for exemplary damages are satisfied.
This requirement would not apply to the recovery of
compensatory damages or attorney's fees and costs.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/3/11)
California Advocates for Nursing Home Reform (co-source)
California Alliance for Retired Americans (co-source)
Congress of California Seniors (co-source)
Consumer Attorneys of California (co-source)
California Council of the Alzheimer's Association
California Disability Community Action Network
California Long-Term Care Ombudsman Association
California Nurses Association
County Welfare Directors Association
Disability Rights California
Gray Panthers Sacramento
Older Women's League of California
Peace Officers Research Association of California
State Public Affairs Committee of the Junior Leagues Palo
Alto
Mid Peninsula
OPPOSITION : (Verified 5/3/11)
Aging Services of California
Beta Healthcare Group
California Association of Health Facilities
California Association of Professional Liability Insurers
California Chamber of Commerce
Civil Justice Association of California
Horizon West Auburn Ridge
Lakeport Skilled Nursing Center
Sanders, Collins & Rehaste, LLP
ARGUMENTS IN SUPPORT : According to the author's office,
it is estimated that over 132,000 elders in California are
abused every year. However, for every abuse reported,
research has found that at least five others go unreported,
making the actual number of abused people much higher than
the reported rate. Studies show that neglect and abuse of
nursing home residents have reached epidemic proportions.
A report by the Centers for Medicare and Medicaid Services
found that at least 91 percent of homes have been cited for
health and safety deficiencies. Yet many residents who
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suffer neglect and abuse find it virtually impossible to
seek justice in court. ÝA] Ýh]igher evidentiary standard
makes winning cases of elder abuse very difficult.
Consumer Attorneys of California (CAOC), a supporter of
this bill, writes that:
Teresa Rodriguez, injured at birth, was a resident at
a Res-Care facility in San Mateo County. As a
developmentally disabled adult, she was non verbal,
but could perform small functions like brushing her
hair with assistance and watching TV. A new
employee, with no training, left Teresa in a scalding
shower, alone, in water that was over 130 degrees for
over twenty minutes. Teresa suffered second and
third degree burns over her thighs, genitals, stomach
and lower back. Even worse, after the employee
returned to get her, the employee hid what happened
and put Teresa in bed, covered in sheets, and later,
after another employee discovered her condition, the
employees still failed to call 911 for more than 3
hours after the injury. Teresa spent the rest of her
life in sub-acute care, with breathing and feeding
tubes, and lost any ability of life control,
including the small milestones of care for herself.
The defendant facility claimed that an elder abuse
claim under EADACPA could not proceed because there
was not enough clear and convincing proof, i.e., that
because of the lack of witnesses and because Teresa
could not "tell" what happened, clear and convincing
evidence did not exist. . . . The case finally
settled before trial, but sadly Teresa died a short
time thereafter.
ARGUMENTS IN OPPOSITION : The California Association of
Health Facilities (CAHF) and Beta Healthcare Group (BHG),
opponents of this bill, raise a number of concerns about
the bill, including following:
opponents argue that the original intent of EADACPA
was to provide "increased access to legal counsel:
(1) allow legal counsel to obtain awards of
reasonable attorneys' fees; and (2) allow plaintiffs
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awards of non-economic damages in 'survival' claims
for victims that die prior to judgment in the
action." The opponents claim there has been an
increase in the frequency and severity of resulting
litigation and there is no shortage of attorneys
willing to take these cases and no evidence to show
consumers are having problems gaining access to elder
abuse case attorneys. As such, the opponents believe
this bill "would only promote additional attorney
exploitation of EADACPA remedies."
The opponents argue that "Ýi]f the Ýevidentiary] standard
is lowered . . . acts of mere negligence would qualify for
enhanced remedies, thereby increasing the risk of
litigation, dodging existing malpractice rules and
exacerbating the shortage of doctors, nurses and other
medical professionals willing to treat this growing elderly
population." The opponents state that deficiencies in
nursing home staffing could then qualify as elder and
dependent adult neglect. The opponents argue that "Ýb]y
filing a claim for relief under ÝEADACPA], plaintiff's
attorneys are able to circumvent the limitations on
non-economic damages and attorney's fees provided to health
care providers under the Medical Injury Compensation Reform
Act (MICRA). This bill will add new incentives for
attorneys to include claims of elder abuse in every
complaint in order to skirt MICRA and secure higher fees."
The opponents argue that this bill will increase litigation
costs and will result in a diversion of dollars from care
to attorney's fees, which will "place these services in
additional jeopardy, which is particularly harmful in
today's economic environment."
RJG:do 5/3/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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